has suffered by such conduct. Lothrop v. Adams, 133 Massachusetts, 471.

A corporation is held responsible for acts not within the agent's corporate powers strictly construed, but which the agent has assumed to perform for the corporation when employing the corporate powers actually authorized, and in such cases there need be no written authority under seal or vote of the corporation in order to constitute the agency or to authorize the act. Washington Gaslight Co. v. Lansden, 172 U. S. 534, 544.

In this case we are to consider the criminal responsibility of a corporation for an act done while an authorized agent of the company is exercising the authority conferred upon him. It was admitted by the defendant at the trial that at the time mentioned in the indictment the general freight traffic manager and the assistant freight traffic manager were authorized to establish rates at which freight should be carried over the line of New York Central and Hudson River Company, and were authorized to unite with other companies in the establishing, filing and publishing of through rates, including the through rate or rates between New York and Detroit referred to in the indictment. Thus the subject-matter of making and fixing rates was within the scope of the authority and employment of the agents of the company, whose acts in this connection are sought to be charged upon the company. Thus clothed with authority, the agents were bound to respect the regulation of interstate commerce enacted by Congress, requiring the filing and publication of rates and punishing departures therefrom. Apply ing the principle governing civil liability, we go only a step farther in holding that the act of the agent, while exercising the authority delegated to him to make rates for transportation, may be controlled, in the interest of public policy, by imputing his act to his employer and imposing penalties upon the corporation for which he is acting in the premises.

It is true that there are some crimes, which in their nature cannot be committed by corporations. But there is a large class of offenses, of which rebating under the Federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. 2 Morawetz on Corporations, 733; Green's Brice on Ultra Vires, 366. If it were not so, many offenses might go unpunished and acts be committed in violation of law, where, as in the present case, the statute requires all persons, corporate or private, to refrain from certain practices forbidden in the interest of public policy.

It is a part of the public history of the times that statutes against rebates could not be effectually enforced so long as individuals only were subject to punishment for violation of the law, when the giving of rebates or concessions enured to the benefit of the corporations of which the individuals were but the instruments. This situa

tion, developed in more than one report of the Interstate Commerce Commission, was no doubt influential in bringing about the enactment of the Elkins Law, making corporations criminally liable.

This statute does not embrace things impossible to be done by a corporation; its objects are to prevent favoritism, and to secure equal rights to all in interstate transportation, and one legal rate, to be published and posted and accessible to all alike. New Haven Railroad Company v. Interstate Commerce Commission, 200 U. S. 399; Armour Packing Co. v. United States, 209 U. S. 56.

We see no valid objection in law, and every reason in public policy, why the corporation which profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has intrusted authority to act in the subject-matter of making and fixing rates of transportation, and whose knowledge and purposes may well be attributed to the corporation for which the agents act. While the law should have regard to the rights of all, and to those of corporations no less than to those of individuals, it cannot shut its eyes to the fact that the great majority of business transactions in modern times are conducted through these bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at.

There can be no question of the power of Congress to regulate interstate commerce, to prevent favoritism and to secure equal rights to all engaged in interstate trade. It would be a distinct. step backward to hold that Congress cannot control those who are conducting this interstate commerce by holding them responsible for the intent and purposes of the agents to whom they have delegated the power to act in the premises.

It is contended that the Elkins Law is unconstitutional, in that it applies to individual carriers as well as those of a corporate character, and attributes the act of the agent to all common carriers, thereby making the crime of one person that of another, thus depriving the latter of due process of law and of the presumption of innocence which the law raises in his favor. This contention rests upon the last paragraph of § 1 of the Elkins Act, which is as follows, 32 Stat. 847:

"In construing and enforcing the provisions of this section the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier acting within the scope of his employment shall in every case be also deemed to be the act, omission, or failure of such carrier as well as that of the person."

We think the answer to this proposition is obvious; the plaintiff in error is a corporation, and the provision as to its responsibility for acts of its agents is specifically stated in the first paragraph of the section. There is no individual in this case complaining of the

unconstitutionality of the act, if objectionable on that ground, and the case does not come within that class of cases in which unconstitutional provisions are so interblended with valid ones that the whole act must fall, notwithstanding its constitutionality is challenged by one who might be legally brought within its provisions. Employers' Liability Cases, 207 U. S. 463. It may be doubted whether there are any individual carriers engaged in interstate. commerce, and every act is to be construed so as to maintain its constitutionality if possible. There can be no question that Congress would have applied these provisions to corporation carriers, whether individuals were included or not. In this view the act is valid as to corporations. Berea College v. Kentucky, 211 U. S. 45, 55.

It is contended that the court should have sustained the objection to the indictment upon the ground that the corporation and its agent could not be legally joined therein, but we think a fair construction of the act permits both the corporation and the agent to be joined in one indictment for the commission of the offense. The purpose of the act was to make the act one of the corporation as well as of the agent, and to include both within the prohibitions and restrictions of the statute, and this seems to be the accepted practice. Thompson on Corporations 4495.

We have noted all the assignments of errors which involve questions of a substantial character.

We find no error in the proceedings of the Circuit Court, and its judgment is

Affirmed.8

8 United States v. Alaska Packers' Assn. (1901) 1 Alaska 217 (taking salmon unlawfully); Southern Ry. Co. v. State (1906) 125 Ga. 287, 54 S. E. 160, 114 Am. Rep. 203, (failure to supply drinking water on trains); Southern Express Co. v. State (1907) 1 Ga. App. 700, 58 S. E. 67 (selling liquor illegally to minors); Franklin Union No. 4 v. People (1906) 220 I11. 355, 77 N. E. 176, 4 L. R. A. 1001 (contempt); State v. Baltimore O. & C. R. Co. (1889) 120 Ind. 298, 22 N. E. 307 (obstructing highway); Telegram Newspaper Co. v. Commonwealth (1899) 172 Mass. 294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. 280, (criminal contempt); State v. Morris &c. R. Co. (1852) 23 N. J. L. 360 (criminal nuisance); State v. Passaic Co. Agr. Society (1892) 54 N. J. L. 260, 23 Atl. 680 (keeping a disorderly house); People v. Woodbury Dermatological Inst. (1908) 192 N. Y. 454, 85 N. E. 697 (unlawfully advertising to practice medicine); State v. First Nat. Bk. (1892) 2 S. Dak. 568, 51 N. W. 587 (usury); State v. Atchison (1879) 3 Lea (Tenn.) 729, 31 Am. Rep. 663· (libel); State v. Baltimore &c. R. Co. (1879) 15 W. Va. 362, 36 Am. Rep. 803 (Sabbath breaking); United States v. John Kelso Co. (1898) 86 Fed. 304 (violating Eight-Hour Law); United States v. Van Schaick (1905) 134 Fed. 592 (manslaughter, the result of lack of life preservers on the steamboat "General Slocum"), accord. But see, Queen v. Great West Laundry Co. (1900) 13 Manitoba Rep. 66; Union Colliery Co. v. Queen (1900) 31 Can. Sup. Ct. 81. Cf. Chutes v. Freeth (1911) 2 K. B. 832.

See the general review of authorities in Queen v. Great North. Ry. Co. (1846) 9 Q. B. 316.

In People v. Rochester Ry. & Light Co. (1909) 195 N. Y. 102, 88 N. E. 22, the Court stated that "a definition of certain forms of manslaughter might be

UNITED STATES v. NEW YORK HERALD CO.

1907. 159 Fed. 296.

AT LAW. On demurrer to the indictment of defendant corporation under Rev. Stat. § 3893, as amended (U. S. Comp. St. 1901 p. 2658).

HOUGH, District Judge. 1. As to the capacity of a corporation to commit the crime alleged in this indictment, I see no reason to depart from United States v. MacAndrews & Forbes Company (C. C.), 149 Fed. 823.9

2. Under Rev. St. 3893, as amended [U. S. Comp. St. 1901, p. 2658], the indictment alleges that the corporation defendant "did knowingly deposit and cause to be deposited" in the United States. mail certain unmailable matter, and that when such deposit was made the corporation "well knew the contents of the same." The question presented on demurrer is not whether the corporation did. as a matter of fact "knowingly" deposit the publication in the mail, or as matter of fact, "well know" the contents of the same, but whether it can knowingly deposit, and well know the contents of, an obscene newspaper. Reading the act under which this indictment is brought in conjunction with the statutory construction law (Rev. St. U. S. § 1 [U. S. Comp. St. 1901, p. 3]), and observing that the act in question was passed subsequent to February 25, 1871, I have no doubt that it was the intention of Congress to make section 3893 applicable to corporations.

Taking as the measure of the knowledge required in cases like this the decisions in Rosen v. U. S., 161 U. S. 29, 16 Sup. Ct. 434, 40 L. ed. 606, and Dunlop v. United States, 165 U. S. 486, 17 Sup. Ct. 375, 41 L. ed. 799, it is not to be doubted that, if by corporate act (e. g., a vote of the board of directors) the obnoxious publication was directed to be placed in the mail, knowledge of its contents and knowledge of the character thereof would be chargeable against the corporation, even though there was a consensus of opinion on the part of the directors that the paper was not of the forbidden character (the Rosen Case); it being enough that said directors in their official capacity were aware of the insertion in the newspaper of matter obnoxious (in the opinion of court and jury) to the statute (the Dunlop Case). To fasten this species of knowledge upon a corporation requires no other or different kind of legal inference than has long been used to justify punitive

formulated which would be applicable to a corporation." (p. 107). Under Penal Code, sec. 179, however, defining homicide as "the killing of one human being by the act, procurement or omission of another," meaning another human being, held, a corporation could not be guilty.-Eds.

9 Indictment of corporations under the "Sherman Anti-Trust Law." On demurrer, held, a corporation may be liable criminally for the offense of conspiracy. Hough, J., remarked: "It seems to me as easy and logical to ascribe to a corporation an evil mind as it is to impute to it a sense of contractual obligation."-Eds.

damages in cases of tort against an incorporated defendant. If a corporation can corporately know that an engineer is a habitual drunkard (Cleghorn v. N. Y. Central, &c., R. R. Co., 56 N. Y. 44, 15 Am. Rep. 375), it can even more surely know the ordinary contents of a newspaper the publication of which is its sole reason for existence.

Of course, the capacity for knowledge and the fact of knowledge are quite different things. The first is a question of law, and must decide this demurrer. The second is a mixed question of law and fact, and, as applied to this case, its answer will depend upon the authority and corporate importance of the human beings responsible to the corporation for the reception, publication, and mailing of the advertisements here complained of as unmailable under the

statute.

Let the demurrer be overruled.10

MONTGOMERY WEB CO. v. DIENELT.

1890. 133 Pa. St. 585, 19 Atl. 428.11

BEFORE Paxon, C. J., Sterrett, Green, Clark, Williams, McCollum and Mitchell, JJ.

On March 8, 1886, on application of the sheriff of Montgomery county, setting forth that certain chattels, levied on as the property of the Aronia Fabric Company, at the suit of Herman Dienelt and George F. Eisenhardt, trading as Dienelt & Eisenhardt, had been claimed by the Montgomery Web Company, the court granted a rule for an interpleader under the act of April 10, 1848, P. L. 450. The rule was made absolute the same day, and subsequently an issue, in which the Montgomery Web Co. was plaintiff, and Dienelt & Eisenhardt, defendants, was framed to determine the claim of title. made by the Montgomery Web Company.

At the trial on October 9, 1888, the plaintiff in the issue, the Montgomery Web Co., called Herman Hamburger, who, being shown a paper purporting to be a bill of sale from the Aronia Fabric Co. to the plaintiff of certain chattels a part of which were admittedly the property in dispute, in consideration of one dollar and the assumption by the assignee of certain specified debts of the assignor, testified to the execution of the paper by the officers of the

10 See also State v. White (1902) 96 Mo. App. 34, 69 S. W. 684 (unlawfully and intentionally obstructing a public road); State v. Rowland Lumber Co., (1910) 153 N. Car. 610, 69 S. E. 58 (wilfully and unlawfully destroying property); Joplin Mercantile Co. v. United States (1914) 213 Fed. 926 (conspiracy to convey liquor into Indian reservation); Kaufman v. United States (1914) 212 Fed. 613 (unlawfully and intentionally concealing assets from a trustee in bankruptcy); People v. Tyson Co. (1914) New York Law Journal of Jan. 13, 1914 (larceny); Section 1932 of New York Penal Code; 14 Columbia Law Review 469, "Corporate Responsibility for Crime," by George F. Canfield.

11 Statement abridged; arguments omitted.-Eds.